Most of the media coverage of the tabling of Bill 32 has focused on its effects on unions and unionized workers (including Part One of this post published last week). Yet, the most far-reaching impacts of the bill will be on non-unionized workers – those who are protected only by the Employment Standards Code (ESC). The bill makes three significant (and a handful of less significant) amendments to the Code.
The single biggest change is a relaxation and expansion of work “averaging arrangements”. Essentially the arrangements are private deals between an employer and employee to suspend the regulations around overtime pay by allowing averaging of work hours over multiple weeks. For example, if a worker works 50 hours one week and 34 the next, under the ESC they would be entitled to 6 hours of overtime pay the first week (at time-and-a-half). The UCP changes to the rules around averaging arrangements mean that an employer could average the hours per week in our example (averaged out to 42 per week) and no overtime would be paid.
These arrangements have been longstanding in Alberta's law and are not uncommon across Canada. However, most jurisdictions place restrictions on their use, and the previous Alberta New Democratic Party government introduced requirements that mandated employee consent for such arrangements and limiting the amount of time they can cover. Bill 32 allows employers to unilaterally impose averaging agreements, eliminates the maximum number of hours a worker is allowed to work in a day (formerly 12) and extends the number of weeks used for averaging from 12 to 52.
The latter provision guarantees that almost any worker who falls under an averaging agreement will never be paid overtime by extending the time frame to a full year. But the most significant change is allowing employers to single-handedly impose such agreements on workers. The previous legislation was problematic because in the employment relationship you can never be sure whether an employee truly consented due to the power imbalanced. Bill 32 strips away any semblance of cooperation and openly permits employers to impose their will in an attempt to avoid paying the overtime premium. This move will save employers millions at the expense of their workers.
The second problematic provision is a series of amendments that make it easier for employers to receive “variances” from the government. Variances are permissions to violate the ESC for specific workers or work situations. In general they are rare and require approval of the Director of Employment Standards or, in restricted circumstances, the Minister. Bill 32 makes it easier to get industry-wide variances, expands the scope of Ministerial authority over variances, and eliminates the requirement that the Director ensure that a variance “meets the criteria established by the regulations”. It also allows such variances to be renewed indefinitely. In other words, responsible oversight of exemptions from ESC provisions is being loosened.
Why does this matter? Most often employers apply for variances when complying with the ESC is too costly or inconvenient. Making it easier to get a variance undermines the regulatory power of the ESC and it will simply encourage more marginal applications based on convenience rather than necessity. Powerful lobby groups like the Alberta Restaurants Association or Alberta Hotel and Lodging Association, both of whose members employ highly vulnerable workers, will be given an easy ride to sidestep minimum protections.
The third change makes it easier for employers to lay-off workers. Bill 32 reduces reporting requirements, extends the period for temporary lay-offs (when no severance is required), and explicitly excludes seasonal and contract workers from notice provisions. At first this may seem like a minor change on the surface, but when legislation lowers the bar for lay-offs it gives employers more power and control over their workers. By increasing the lay-off threat, you make workers more compliant.
Bill 32 is being justified on the basis of “reducing red tape”. Without a doubt it does that but, to be clear, all the red tape it reduces was put in place to protect the interests of workers. Bill 32 is an intentional effort to hand employers more tools to exert their will in the workplace. It will save employers money, that is for certain, but it will be workers’ pockets that money comes from.
As mentioned in part one of this blog post, Bill 32 is part of a broader agenda to implement a low wage, high profit economy. Workers’ well-being is a casualty in that agenda.